Introduction
ADR i.e., Alternative Dispute Resolution, is a term that is often used nowadays, but what does it actually mean?
ADR, as the name suggests is the process of settling disputes between the parties without the intervention of a judicial institution or court. Basically, it is setting off the issue without going into the hectic process of litigation. Now the question arises of how this alternative method arose in India?
It was introduced in the 222nd report of the Law Commission of India[i], which states that ADR can resolve the problem of delays in the judgment, can reduce the cost of resolving disputes, and will also simplify the procedure by eliminating the technicalities of the litigation process.
It further states that courts are the only way for a common man to achieve justice, but there are barriers like poverty, illiteracy, and backwardness to such justice. And complexities of the litigation process and the cost of the same plays an important part in getting justice through the courts. As a result, the majority of Indian citizens are unable to exercise their legal or constitutional rights, which ultimately leads to inequality. And Article 39A[ii]states that the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.
And due to these reasons, ADR was introduced as a remedy for the citizens.
ADR, an upcoming measure
We must have heard at least once about the Amazon case which gave limelight to the arbitration method of alternative dispute resolution, also ADR is commonly used in contractual breaches and we have heard the term ADR most of the time in the cases of a contractual breach between two big corporations. But an infamous field where ADR methods are used is marital disputes.
ADR not only aims at cost or time effectiveness but it helps in reducing the burden of the court, of the litigation sector by resolving the disputes through a third party, outside the court. This method of settling a dispute without litigation interference has made a shift from court to this method. ADR has cooperation as its base as a third party tries its best to help the involved parties cooperate and come to a mutual solution.
Arbitration and Mediation in family matters
In India solving marital disputes through alternative dispute resolution is not a new thing, in the earlier times, Panchayat Raj was there, whose decisions used to be binding on the parties even in personal matters as the “Panchs” used to hold the supreme authority in those times.
Today, arbitration and mediation are used to settle marriage-related disputes like separation, divorce, etc.
Arbitration is an informal process where a party i.e., a neutral third party is appointed to settle the dispute between the parties. In a divorce matter, the arbitrator appointed by the parties listens to them privately. This maintains the privacy of matter between the parties only, while on the other hand such extent of privacy can’t be maintained during a regular court proceeding. Also, people prefer methods of ADR to solve their disputes quickly, and also it is cost-effective. After hearing the parties, the arbitrator comes to a decision.
In mediation, unlike arbitration, instead of rendering a decision, mediators facilitate the settlement of disagreements or conflicts between the parties. Here, open communication takes place between the parties to avoid any kind of misunderstanding or miscommunication, the mediator hears both the parties and concludes.
In today’s world, where marriage is no more only a non-dissoluble sacred bond rather it has fallen more on the side of a contract. As it is no longer considered indissoluble, divorces have become common. People want to solve their marital problems as fast as they can and with utmost privacy as these issues include sensitive information which is not supposed to come out. Also, family reputation is included in these matters and that’s why the family wants to maintain secrecy in these matters. And arbitration and mediation are the methods that completely suit this position. The meetings conducted can be flexible according to the needs of the parties.
In the case, K. Srinivas Rao vs D.A. Deepa[iii], the second issue which was answered was how the issue could be handled in a better way? In response to it, it was said that “10-15% of the matrimonial cases sent for court-directed mediation get resolved. If the parties in the present case, would have tried to resolve the dispute at the onset itself, things wouldn’t have been this ugly. For this, the court suggested the process of mediation. Where the parties could have taken the help of a neutral person help to understand the dispute better and arrived at an amicable solution. The court referred to section 9 of the Family Courts Act and said that mediation should be made compulsory in disputes where settlement is possible.”
This statement by the Apex court clearly states that ADR methods can solve the matter easily and at an earlier stage itself.
Conclusion
Recent years have seen a rise in the use of mediation to resolve separation and divorce cases. A mediator is asked to be "in the midst" of individuals in conflict, in contrast to a lawyer who is prepared to represent one client and offer to advise. You bargain amicably with one another thanks to the help of mediators who facilitate dialogues. Without the mediator taking sides or imposing any binding conclusions, you resolve your disputes by creating an agreement that is agreeable to both parties.
Even with a mediator's assistance, conversations that are facilitated are not always successful or guaranteed. To create a safe environment, mediators must interview each client to determine whether they are willing and able to bargain honestly. By that, I mean being prepared to acknowledge the validity of the opposing viewpoint and to work with the other party to come to terms that satisfy everyone's needs, not just your own.
Though the process involves privacy the parties feel discomfort in telling their issues to an outsider, in a third person, on the other hand, they trust more on the courts while telling their issues because still the concept of mediation and arbitration is not so famous in India, there is still a long journey ahead.
[i] Law Commission of India, Need for Justice-dispensation through ADR etc., (Law Com. No. 222 2009) 14
< https://lawcommissionofindia.nic.in/reports/report222.pdf>
[ii] INDIA CONST.art.39A
[iii] K. Srinivas Rao v. D.A. Deepa, ((2013) 5 Supreme Court Cases 226: AIR 2013 SC 2176)